It's worth noting that there was a lot of serious literature making
similar points at greater length in the late 1960s/early 1970s -- i.e.,
the period of time in which it appeared the Court might embrace the
economic implications of its then emerging equal protection jurisprudence.

Frank Michelman's excellent works from that period linking democratic
participation to issues raised not only by Rawls but, more creatively
and surprisingly effectively, to Ely are unfortunately of merely
academic concern at this time -- but they are suggestive of how much
elections matter. (cf. 1968 & Humphrey's mishandling of Vietnam)

----- Original Message -----
From: RJLipkin@aol.com
Date: Tuesday, June 27, 2006 11:21 am
Subject: Re: Volokh on Vermont

Just one quick reply to  Eugene's interesting comments.  If 
restrictions on 
spending money are  restrictions on speech, then wouldn't it follow 
that a 
society that is designed  (or just happens) to create inegalitarian 
economic s
tratification which  results in vast disparities ("restrictions"?) 
on spending 
money in  political campaigns are "restrictions"--at least de facto 
restrictions) 
on the  many.  Of course, one may argue that such inequality--
excluding some  
people from serious entry into the campaign wars while privileging 
a  much 
smaller, elite class in those wars--cannot count as "restrictions" 
or  
'restrictions on speech." Perhaps.  But beyond these analytic 
limits, such  inequality 
in effect, if not by design, creates a privileged elite--both  
Republicans, 
Democrats, and some others--which has precisely the same  effect.

       In others words,  though I don't take myself--and I'm sure 
no one 
will understand my  comments--as making a doctrinal point within 
first amendment 
jurisprudence, I am  suggesting a broader point about our 
constitutional 
culture which sees the  speech of some as outweighing the speech of 
others. If 
voting and forming  associations to express political views 
(campaigning) is such 
a critical feature  in republican democracy, then why are the 
restrictions on 
the speech of an elite  more troubling than accepting this 
"unavoidable" ( I 
suppose some might say)  effect of inequality which precludes the 
speech of 
many? In a  republican democracy, I would think, voting and 
campaigning should at 
least  presumptively trump all other constitutional values.

       One response I find weak in  the extreme is this. Given our 
free 
society those outside the elite class can  earn enough money, if 
they really 
cared, and join with others in associations  who speech is just as 
constitutionally 
respected as the elite's. This reply is  weak, in my view, because 
it doesn't 
appreciate the difficulties for many  of doing either.

Bobby

Robert Justin Lipkin
Professor of Law
Widener  University School of Law
Delaware